Talking Around Amy Coney Barrett

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S1: The following program may contain explicit language and.

S2: It’s Tuesday, October 13th, twenty twenty from Slate, it’s the gist. I’m Mike Pesca. The governor of Michigan was the subject of a terrorist plot to kidnap and execute her. You remember Michigan from such presidential hashtags as Liberi, Michigan. Also, the governor of Virginia has now been revealed to have also been brought up by the bearded weirdos who had targeted Governor Wittmer of Michigan.

S1: Yeah, Virginia. That’s right. You know, Virginia from such a presidential tweet says hashtag liberate Virginia. But I was struck by a question Governor Wittmer was asked on Face the Nation.

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S3: So having been credibly threatened with murder, here’s the query from host Margaret Brennan, three of the men that were arrested as co-conspirators and part of this plot were also involved back in the spring and April with storming the Michigan Capitol with guns at the time. These are your constituents. How do you in your state unify things? I know you’re talking about the president and rhetoric, but what do you do to deal with this unify?

S1: Well, we start by jailing these guys. For one, I’d unify them maybe in one trial, maybe a couple and find them all guilty. And maybe they could spend time in a federal supermax and be unified during the one hour of yard time a day they get. That is what Governor Wittmer could have answered. She instead said something more high minded about how it was her job to work for all Michiganders. So host Margaret Brennan tried once again.

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S3: Clearly, there are some deep, deep divisions in your state. Can you work with them with the Republican controlled legislature? Absolutely. You know, I was raised in a household with a Republican parent, a Democratic parent. But the fact of the matter is we have to find common ground.

S4: The governor is more even tempered than I would have been perhaps as a woman. She’s been socialized to be that way. But what is this? How are you going to work with the other side business? What is she, the pope? She has to forgive her, would be assassins. Republicans, by the way, aren’t just the party of opposition in Michigan. They’re the party of Kahootz. OK, now, with the actual literal terrorists, just with the means of terrorizing, listen to Michigan House Democratic leader Christine Graig. She was on the Michigan politics cast talking about threats to public officials in her state.

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S5: You know, you take some risk when you sign up to be a public servant, but you never thought you had to fear for your life every single day going into the workplace.

S4: Not hyperbole, because what she’s talking about is this. Michigan is one of two states that allows guns in the state capital. In fact, one of the two arrested would be kidnappers were among militia members in the capital, in the visitor’s gallery, walking around armed during a permissible armed protest against masks and lockdowns. The Democrats in Michigan have introduced legislation to end this practice. A credible terrorist threat on the governor’s life might have been the impetus for some Republicans to agree with them. Not enough. Apparently, it hasn’t happened. So how can you find common ground and heal? Greg suggests it’s not by coming together or each side giving a little, it is in fact, for in this case, Republicans to change their stance and allow sensible rules to be passed so no one gets killed.

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S5: I mean, this should be something we can find common ground on and doesn’t need to to push up the rhetoric. But, you know, if they continue to fail to act on this, yeah, we’re going to continue to push it as an issue. And I’m sure it will cause some friction.

S4: Yes, there is a time for perspective taking and a time for one side to change, to reform. The downside risk of another with a long gun hurting someone on the very fraught floor of the Capitol would seem to be a compelling reason for even an amoral actor to amend the law self-interest, not Michigan. Maybe we could find common ground and hope. Let’s just hope, because all we can do is hope that the common ground they find is not laced with ordinance or in the crosshairs of a patriot taking liberacion cues from on high on the show today, I spiel about the confirmation hearing or really the confirmation talking around Amy CONI Barrett. But first, Elliott Williams is a former Obama administration staffer who has gone on to much more respectable work. He is now a podcast host. His series, Made to Fail, is about the concerted effort by conservative politicians and policy makers to bring about the institutional reality that we’re living in right now. And how is that reality going? I told you the name of the podcast is Me to Fail. Elliott Williams, up next.

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S6: There is a new podcast out called Made to Fail, it is well, the subtitle is Succinct and to the Point How Conservatives have Deliberately Undermined Key Institutions. This isn’t nonfeasance. This is strategic malfeasance. And in it, Eliot Williams, who hosts the podcast and is a CNN legal analyst and a former Obama administration official, goes from state to state, actually hitting Wisconsin twice, talking about how conservatives in the conservative movement are trying to make government institutions not work or at least not work for us, but they think work for them. Eliot, good to talk to you again, as always. Good to talk to you, Mike. How are you? I’m well. So this is an interesting project from you. You’re at this crossroads. You’re a journalist guy. You’re a law guy. What got you into this?

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S7: You know, it’s really interesting, but I’m also a government loving citizen or just people loving citizen of the United States. And as we see the moment we’re in right now, what the coronavirus pandemic unfolding, we’re really starting to see how systems are kind of buckling under all of the problems brought by coronavirus. And what you begin to see is from things like, obviously, the health care system being the obvious one, but then unemployment insurance and the system of how our elections are run themselves are all straining quite significantly as a result of the coronavirus. And what the consistent thread seems to be is that the systems around them were all set up very poorly and to some extent made to fail as the title goes. And so really, it’s it’s much bigger than pointing the finger at conservatives. I think it’s really just looking at we are in a singularly difficult time in the nation right now and the systems that we need in the country more than ever to fix them are actually not set up. Many of them just not set up in an effective way.

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S6: Well, the earth system in our democracy is democracy itself. And that’s episode one. I’ll throw a word at you and you tell me what it means and why listeners should understand it.

S7: Justiciable, justiciable. So that means when a court can weigh or consider an issue, it is justiciable. It is the courts are allowed to look at it. And what you’re getting at is how ultimately the Supreme Court enshrines voter suppression in Wisconsin by finding that there are issues around around voting that are simply just not justiciable. And so Bush versus Gore is the obvious example where they get so close to ultimately deciding this question as to whether recounts can go ahead, but ultimately make the decision that the fundamental issues in the case are not justiciable. So we do try to we try to be as unvanquished and unlikely as we can. But, yes, the word justiciable does come out.

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S6: Yeah. And also the issue goes beyond gerrymandering because you can’t gerrymander an entire state. So Senate elections, for instance, aren’t gerrymandered. And there’s still a lot of governor elections, still a lot of voter suppression going on right now. So episode three is about Florida and people getting there, the unemployment benefits that they’re entitled to. Different states have different levels of generosity, but Florida is doing something else. What do you find?

S7: Right. And as I said to you, when we were just chitchatting a little bit earlier before we started recording, this is to me, this one hit really, really hard and was perhaps it’s almost the most coherent, which is that the system, the unemployment system in Florida was designed to get people off of it. Now, look, in the abstract, we can say that, well, certainly we don’t want people getting unemployment insurance or assistance because we want more people working and more people working is actually good for society and so on. But the numbers were kind of goosed and the method of getting people onto the unemployment system was just designed to kick people off. And so it allowed the governor at the time, Rick Scott, the governor of Florida, to say we were reducing the unemployment rolls by simply not having people go on unemployment in the first place. And that actually ended up at a moment in the country when people were sort of most needed, unemployment assistance being, in effect, kicked off and in effect, discouraged from even seeking the system and seeking assistance in the first place. It really showed a system that was it was, again, broken from the very beginning.

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S6: Yeah. And in fact and so how this really shows up in a glaring way and beyond the borders of Florida, there is a national problem. There is a federal benefit. But to get the federal benefit, you have to go. Through this Hinkie horrible state system and the AP reported as of April 20th that Florida was the slowest state in the US to process unemployment claims, and they found that only six percent of Floridians on April six who had filed for claims had gotten it. And a month later it was twenty five percent rejection rate and seven out of eight Floridians didn’t get the claims they were entitled to. What a horror show.

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S7: Yeah, and we talk about this in it’s like even starting with the whole time on the website, simply being able to interface with a system and try to get it to work effectively. That was itself discouraging to many, many people so that people would spend hours. And we talk about you heard this in the episode, people spent hours simply trying to get in and simply felt it can eventually just gave up, gave up and given how again, tying this all back to the coronavirus pandemic, more people are out of work. The state mismanages coronavirus response quite impressively. And so as a result, what you had was a system that was so convoluted that people just gave up before even collecting anything at all.

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S6: Yeah, and Rick Scott gets the bulk of this blame. Now, Ron DeSantis, the current governor, comes in for some blame in your podcast. But I did note that he himself pointed the finger at Rick Scott. He told a Miami CBS affiliate, quote, Having studied how the unemployment system was internally constructed, I think the goal was for whoever designed that it was let’s put as many kind of pointless roadblocks along the way. So people just say, oh, the hell with it, I’m not going to do that. That was the scientist talking about his state’s own system.

S7: Again, the whole point is to undermine the very system because of look and let’s talk about it. It’s there were even you sort of both sides to point a little bit earlier. And Democrats in the history of Democrats in the 1990s was sort of a history of expression, of concerns with unemployment and welfare and so on. That was modish in the party twenty, twenty five years ago. So, look, I get it. There have even Democrats to some extent have had some evolution on what unemployment insurance and sort of the quote unquote, welfare state means to the party. However, what you have found is that when we point this out that Scott’s and Sanders’s disdain for unemployment insurance was so profound that they simply just didn’t want the government to be paying it out at all. Now, again, some of this is about ideas and what conservatism is and isn’t, what liberalism is and isn’t. And, yes, it’s a perfectly valid debate to have about what the role of government ought to be in people’s lives, what the role of government ought to be, and in the functions of government. Like I get that. But the simple fact is what what they have then done is create governmental systems that actually penalized or hurt the people who literally need them the most more than anything else.

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S1: How’s that? How’s it working out for the architects of these programs, would you say? I mean, in the short term, it seems like they’re winning some elections, right? Scott Walker squeaked by anyone. He won more elections than anyone has the right to who’s a two term governor, but with recalls and so forth. But is the project in the long run, doomed to fail and then rebound on the architects? Or are the architects pretty happy with how it’s going?

S7: Do you think that’s that’s another good question. Look, we’re at a an interesting moment in American politics right now where it’s a big election and it’s a it’s a question of which ideas are we and which philosophy as a nation are we going to adopt? And is it one that seeks to divide and vilify, which is what the president clearly what the president has said as almost the casus belli of his movement, which is if I just divide and vilify and pick enough people off, then that I can win or we can actually have a sensible debate about some of these things. And so to some extent, when we to some extent, this is almost Joe Biden, are you listening? These are the systems that we need to fix. And this is this is almost a template and a roadmap for how for how we could get there. But this is also what we’re up against.

S6: OK, one more question. Since I have you and I want to pursue this, someone from your vantage point would be interesting. What do you make of the argument by people, very progressive people, people on the left, an argument against Kamala Harris and her experience that she was a cop, that she was a prosecutor and that she wasn’t a progressive prosecutor, especially considering that that phrase hadn’t really entered the lexicon when she was the attorney general. What should we think of her tenure, how much that qualifies hurt and how much she should run away from that?

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S7: That’s an interesting question. No, No. One, it’s not your. Others Democratic Party anymore, so so first, no, it’s just not so the simple fact is so for instance, if you look at Jesse Jackson’s Democratic platform as a candidate and look at the party platform today, where where many were, some in the quote unquote mainstream of the party might have looked as Jackson as outside of the mainstream. A lot of those ideas are part of the Orthodox party orthodoxy today. So it’s clear that the Democratic Party has shifted to the left as it’s as the nation has gotten more diverse and started to think about some of these issues more. So certainly we as a nation are in a different place with respect to policing and prosecutors and so on. And that’s a healthy argument and conversation to have. Now, what what that’s done is sweep in a Kamala Harris into this broad well, she was a cop and so on. Her record is actually quite mixed on this issue. On the one hand, she when she first runs for office, she runs to the right of the person she unseats using some of that tough on crime rhetoric or so on. And there was that. There’s this for folks probably know about this whole truancy issue where she was arresting the parents of kids who were truant and a number of steps like that that sort of put the Kamala Harris is now to the right question. Right. But then there was she even in the rhetoric she used, she used some of the rhetoric of reform almost a decade before it got more modish as a nationwide thing and sort of speaking about the circumstances in which people were born, which is revolutionary for a prosecutor to do when she was doing it five or 10 years ago or so on or talking about the need for reform and so on. So I just we in this era tend to paint people in a very broad brush. Either you’re in or you’re out, either you’re cancelled or you’re not. Either you’re a cop or you’re not. And let’s not just forget that it’s her record is just a little more complex than she was a cop trying to lock everybody up. And it’s a bad thing. A and B, come on, she’s a black woman and a South Asian woman. This is itself a profound moment in American politics. And I think being too quick on the draw about we’ve got to she’s not our voice simply. And also, more importantly, look at how she’s governed, not governed, but but legislated as a member of the Senate. She’s definitely there’s no question that as a reform minded, race minded, conscious individual, there’s no question that she’s firmly on the left in the United States Senate. So, you know, folks, it’s fair to have that kind of skepticism. It is an important voice in the Democratic Party today. But it’s I think she’s just her record is a little more complex than that. And if you read her book, I mean, she gets into some of that a little bit, that there’s some nuance. And particularly, this is the last point I make, particularly, you know, there’s a generation of black politicians to some extent where, you know, she’s even to the left of that. But there’s a generation of black people. I would even put Val Demings in this that came up under the guise or under the notion that working in law enforcement in a sensible, reform minded way was a good thing. Yeah, that generation pretty much ended like a year and a half ago. Right. But I’m specifically referring to black politicians, not just not just law enforcement, Democratic ag attorney generals or whatever. And it’s interesting to see that almost like it’s almost like now they came up a certain way and are now almost being penalized for it. So we’ll see how it goes. The interesting thing, though, is that I think Harris, I do think yes, that voice on the left is a real one, raising concerns about Harris’s record. On the other hand, Democratic activists have to come out for Biden to win. But Biden also has a job to do in convincing some of these people that voted for Trump to flip to him. I think and to some extent, Harris’s record might appeal to some of them.

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S1: The name of the podcast is made to fail. And the man we’ve been speaking to, the host of the podcast is Elliot Williams, CNN legal analyst, long time member in a few different jobs of the Obama administration. Great to talk to you again, Eliot. Of course, as always. Good talking to you, Michael.

S4: And now the spiel. Supreme Court confirmation hearings have been likened to kabuki theater, kabuki being known as a Japanese art form whose major role in life is to serve as a somewhat inaccurate analogy for Supreme Court hearings. They’re actually not like Kabuki. They’re more like a theatrical performance where the only choices the participants are allowed to make are not the ones that the public really cares about. So whether the pas de deux in a musical celebrating the life of Charles Manson was performed with precision, not as important as the question, should there be a musical celebrating the life of Charles Manson? Now, I could tell you my opinion on that, but you shouldn’t infer that as a judge that opinion will mean anything. I can very well give Charles Manson a posthumous Tony Coady. Barrett played her part well, played her part nearly flawlessly. In fact, she was held up as a paragon, not just of qualification, but fecundity. This, folks, is what a mom can do. That from Senator Joni Ernst of Iowa.

S1: And Connie Barrett’s answers were all well phrased, measured, thought out, and entirely beside the point of how she will actually affect the lives of people. Since I will mostly talk in this segment about how senators framed and phrase their interactions, I just like to play a moment of Connie Barrett being clear and coming off as professorial and sensible and I think engaging some of that.

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S8: The Constitution, one reason why it’s the longest lasting written constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting so that, you know, when you’re talking about the constable banging at your door and, you know, 1791 as a search or seizure, now we can apply it, as the court did in Carpenter vs. United States to cell phones. So the Fourth Amendment is a principle. You know, it protects against unreasonable searches and seizures, but it doesn’t catalogue the instances in which an unreasonable search and seizure could take place. So you take that principle and then you apply it to modern technology, like cell phones or, you know, whatever. Technological advances enable someone with Superman x ray vision to simply see in your house, you know, is that so there’s no need to knock on the door and go in? Well, I think that could still be analyzed under the Fourth Amendment.

S1: You know, I always said about Antonin Scalia, if he didn’t have an actual influence over laws that affected my life, I would have really liked the guy. He was a thoughtful person who had a keen intellect and seemed to be generally friendly, maybe decent, depending on how you define decent. I think I would have gotten along with him. Same with Amy Cody Barrett. But since she will have an influence over my life, I do not want her on the Supreme Court. What I’m saying is the product of her jurisprudence will have an undesirable outcome for America and Americans that addresses the product of her judicial rulings. But the hearings cannot consider the product to come. They can only concern themselves with the process. And Connie Barrett knows all the evasions and answers to give is to sidestep concerns about process answers that have worn a rut in the Judiciary Committee hearing room over the years designed to talk about things other than what needs to be talked about. How a Supreme Court justice appointed for life affects all our lives. Can’t talk about that. So with, say, Brett Kavanaugh, the talk was about temperament and past actions. And Republicans talked about fairness and reputations. Yesterday, Senator Kennedy of Louisiana was still talking about that.

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S9: It was a freak show.

S1: It it looked like the the cantina bar scene out of Star Wars fan ship, it made the Kessel run in 12. I like beer, still like beer. It was a Star Wars that this hearing reminded me of. It was another movie. So as background, all the Democrats told stories and often displayed blown up photographs of constituents who would lose health care if the ACA were struck down.

S10: I’m looking at people in my state that will deal with this if the Affordable Care Act is struck down. Alija from Saint Paul, who was born with cerebral palsy, Christina Monroe Garcia of my home state. At age 60, Christina’s eyesight started to fail because of cataracts.

S9: Want you to meet Kenny Murray from Tinley Park, Illinois, and his family. And Kenny Murray told me that their son Kenny was diagnosed in utero with multiple complex congenital heart defects.

S1: So those were the stakes. Those were the real life stakes. These people are not an abstract argument in the movie. It reminds me of his Silence of the Lambs, where the abducted girl’s mother goes on television and mentions her name often so as to humanize her.

S8: And FBI Agent Starling says she sees Catherine as a person and not just an object. It’s harder to terror.

S1: So the Democrats talk to the right to life, professor, as if she were a serial killer. And that might work. It might impress upon her the cost of overturning the ACA. On the other hand, it’s unlikely the entire ACA will be gutted in. Cavanaugh and Roberts have expressed ideas in past rulings that you can sever a part of the statute in this case is the individual mandate and the law itself can still stay in effect. Maybe none of this, none of the be made to sympathize with real people will have an actual bearing on the decision. But it is a televised hearing, so Democrats see it as in their interest to make their ACA point over and over and over again. If I were a Republican who doesn’t particularly care about the ACA being totally scrapped, I would be watching these hearings and saying, what do these people, maybe people who need health care, these sympathetic people, what do any of them have to do with Judge CONI Baratz qualifications to be justice? CONI Barrett? And the answer really is not much. It just goes to the fact that the hearing can only be about process, but the actual interest is almost entirely in product. It’s not like Republicans didn’t engage in purely political shenanigans. They were so desperate to have someone attack CONI Barrett quite nastily that Thom Tillis went to Twitter and read into the record mean things random tweeters were saying about her. That’s usually a segment on Jimmy Kimmel, isn’t it? And you couldn’t dislodge the regular Republican talking point from the mouths of some of the old timers. There was Chuck Grassley with this old saw.

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S11: This idea of place in our system of government is critical. Ours is a government of separated powers. The power to make, enforce and interpret law is centralized, isn’t centralized in one person or one branch of government. That’s commerce. That’s not a mistake.

S1: He was contradicted by his own Republican colleague, Mike Lee.

S9: They’re not equal in the sense that the least dangerous branch was, is always has been and always will be the judicial branch for the simple reason you can’t reach out, you can’t decide where we’re going to go today or tomorrow. The judiciary is confined solely to those cases and controversies brought before your jurisdiction. You look not into the future, but in the past, you see the world, as it were, through a rearview mirror. Your job is to decide what the law says when people disagree as to the law’s meaning, so judges can’t make the laws only interpret it narrower.

S1: Still, as many before this committee having toned down really our job to interpret the law, it’s just to follow the law. Roe, ACA, Heller. All I will do is follow the law. Never mind my personal opinion, never even my my legal opinion before. Now, I am an unknowable automaton of applying the law. Everyone agrees that I am immensely qualified for this job, a job that requires nothing more than following the rules, which a not very sophisticated computer algorithm can do, albeit a computer algorithm without seven adorable children. So now it’s not really kabuki or a pas de deux or medicine musical. It’s a performance that has nothing to do with the actual subject. It’s said to be about best analogy I could think of. A modern Supreme Court hearing is a little like the recitation of mandatory lines at airport check ins. Yeah, pack the bag myself. No, I didn’t let a person unknown or known to me handle it. Now let me get on my plane and give me my two bag of peanuts for life where we land. I think that’s pretty well defined because the flight plan has been quite apparent for a long time.

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S2: And that’s it for Today Show, Daniel Shrader, just producer, wants to find common ground among his sweater and the mobs that have been using it as a wet market for the last couple of months. Margaret Kelly, just producer asked, can’t we all just get along, all of us, me requiring sleeping past six thirty in the local sanitation department, which requires the trucks to be assembled in front of my house and predawn hours set to beep beep in the drive, reverse and neutral gears. Alicia Montgomery is executive producer of Slate podcasts. She’s inspired to find common ground between her garbage in the neighborhood, raccoons who self-identified as locavores. The gist? It’s a freak show. That’s right.

S1: The band playing was frequent down in the load’s Mamani, Don JUTAN and pundit Bobba. We’re all there. You might call them Hammerhead, Snaggletooth and Walrus Man, but we starwars experts know. Oh, no.

S2: I’ve gone from Senator making a cultural reference to sad man geek. But my point stands Brett Cavanough like Bill Adepero Dupree. And thanks for listening.